The Supreme Court’s Waughian jurisprudence

News microphones wait to capture reactions from U.S. Supreme Court rulings outside the court building in Washington, June 25, 2013.

The Supreme Court is sidestepping major issues. In the Fisher v. University of Texas affirmative action case, opinion of the 7-1 Court written by Justice Kennedy said, consistent with his dissent in the 2003Grutter case that upheld “affirmative action,” that strict scrutiny should be applied to the use of racial classifications in college and graduate school admissions, and remanded the case to the Fifth Circuit Court of Appeals for reconsideration. However, he declined to expressly overrule Grutter, which may have been necessary to get the votes of Justices Breyer and Sotomayor. (Justice Kagan did not participate.) They still have a precedent that a university may consider “diversity” in admissions as a goal. But it seems a little incoherent for Justice Kennedy and Justice Scalia to uphold a decision with which they disagreed at the time. Justice Scalia in a separate opinion wrote that he concurred in the full opinion because the plaintiffs didn’t raise the argument that the whole scheme was unconstitutional under the Fourteenth Amendment.

Intellectually, the justices writing the other two separate opinions seem to have the better arguments. Justice Thomas argued that racial discrimination-which is what the use of racial quotas and preferences is – should be flatly prohibited and, interestingly, he shows the similarity between the sociological arguments made by affirmative action advocates in recent decades and segregation advocates in the 1940s and 1950s. They argued that race quotas/segregation would enable students to get a better education and people generally to get along together. Justice Ginsburg argued, persuasively given the experience of the University of California system in the 1990s after voters outlawed racial quotas and preferences, that university administrations would impose quotas surreptitiously. These evidently believe that their whole moral worth depends on how many blacks and Hispanics they admit, even though, as Richard Sander and Stuart Taylor have shown, the mismatch of “affirmative action” students with the rest of the student body tends to hurt the blacks and Hispanics who are admitted. I think university admissions offices are some of the most intellectually dishonest and corrupt institutions in our country.

Some commentators are suggesting that it will be harder for universities to defend racial quotas. At the Volokh Conspiracy blog David Bernstein agues that that will be the case particularly against claims that people with handicaps who are not classified as black or Hispanic-poor or ethnic whites, refugees, odd duck ethnicities-are not being admitted while less qualified blacks are. This might get us out of the racial categories, and into economic/class discrimination, which a few liberals have advocated. But it may be the case that we will simply see less litigation of this kind. University administrators are on notice that they could lose a lot of cases if they can be seen to be discriminating by race. So they may avoid any explicit racial criteria and anything that look like the de facto quotas they employ today. Or they may just continue to discriminate by race and hope, as Stuart Taylor fears, that the cost of litigation will prevent legal challenges.

In the Voting Rights case, Shelby County v. Holder, Chief Justice Roberts overturned Section 4 of the Voting Rights Act requiring certain states and localities, based on their percentage of voting participation in 1964 (and extending, after later reauthorizations, to 1972), to have any changes in election laws precleared by the Justice Department. The Chief Justice didn’t overturn Section 5, which is the actual preclearance procedure. He said Congress could repair the law by setting a different standard for preclearance. Immediately Democrats started attacking Republicans for what they anticipate will be an unwillingness to set a new standard. But what standard would they-any of them-set? The 1960s standard used low voter participation as a trigger because it tended to identify the states and localities where blacks were informally, but systematically and effectively, barred from the polls. It was an extreme measure to remedy an extreme injustice. This brought several Southern states and localities under the law, but for at least a while it also brought under the law the boroughs of Brooklyn and The Bronx and the state of Alaska.

But what standard would you set today? Low black participation? In the recently released Census survey of voting, a higher percentage of blacks than non-blacks reported that they voted in 2012. That was true even in Mississippi, as Chief Justice Roberts noted. He noted that black participation was higher in Section 4 constituencies than in the rest of the country. How about covering any state or locality with large percentages of blacks? Well, that would mean including black-majority cities and counties where if there is any discrimination it is against whites (as alleged in the Noxubee County, Mississippi case). How about covering the whole country? There you run into a Tenth Amendment problem. The Constitution explicitly leaves voting qualifications to the states. One clause states that members of the House of Representatives will be elected by the same electorate that chooses members of the most populous house of the state legislature. The Voting Rights Act was passed pursuant to the Fifteenth Amendment, which asserts that the rights of blacks to vote shall not be infringed. Is it infringed in North Dakota, which has very few blacks (most of whom are members of the military)? And will members of Congress vote to require their state and local elective officials to get Justice Department approval of any election law changes (including voting precinct locations)?

I suspect Republicans will go along with just about any definition the Democrats and the “civil rights” lobby comes up with. Sections 4 and 5 have served their partisan purposes, by encouraging the creation of black-majority congressional and legislative districts, which leaves adjacent white-majority districts more Republican. The cynical alliance of Republicans and black Democrats has been operating at least since the 1990 redistricting cycle (I saw it prevail in Florida then, when Democrats still had the governorship and majorities in the legislature). Republicans have little interest in seeing it fade into history. They went along happily with the extension of the act in 2006 until 2035 and will likely meet any Democratic demands. But how can the Democrats come up with plausible demands?

I see in these Supreme Court decisions a desire by the Court not to be confrontational; the justices didn’t reverse Grutter and they didn’t overturn Section 5. But I see even more a desire to just have these cases-university admissions and Voting Rights Act cases-just go away. I heard a story some time ago in England that the daughter of the dyspeptic novelist Evelyn Waugh once invited a fellow Oxford undergraduate to come to the family country house in Somerset for a weekend. But she warned him that her father “might be in a mood.” They drove three hours from Oxford to Somerset and, on coming up the driveway, they discerned an elderly man-Waugh died at 62 but who was elderly long before that-in an open window on the second floor yelling, “GO AWAY!” Duly warned, they drove back three hours to Oxford.

I think the Supreme Court is yelling, “GO AWAY!” Which, when you think about it, is what they – or Chief Justice Roberts – did in the Obamacare case last year. Let Congress and the Executive Branch and the states sort out the mess that is Obamacare. The Court doesn’t want any part of it.

This is written before the Court announces its decisions in the same-sex marriage cases. I’m betting that they don’t overturn the peculiar Ninth Circuit case invalidating the 2008 California referendum banning same-sex marriage. The Ninth Circuit decision was cleverly crafted as applying to California only, and anyway everyone knows, given the increasing acceptance of same-sex marriage, that the 2008 Proposition 8 vote (only 52%-48% against same-sex marriage), would be overturned if California voted again on the issue. And I’m betting as well that the Court will not overturn the Defense of Marriage Act, signed in the dark of night in 1996 by Bill Clinton, that requires the federal government and states that choose to do so not to recognize same-sex marriages. Let the California state government and voters deal with legal same-sex marriage (which they’re happy to have endorsed) and let Congress deal with the Defense of Marriage Act, which could be repealed tomorrow in the Senate and could win probably win enough votes in the House to be repealed in some not so distant time.